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ERNEST ROBINSON v. COMMONWEALTH PENNSYLVANIA (09/29/77)

decided: September 29, 1977.

ERNEST ROBINSON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF JUSTICE AND BUREAU OF CORRECTIONS OF PENNSYLVANIA AND D. E. KNOLL, RECORDS OFFICER FOR BUREAU OF CORRECTIONS OF THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD, PENNSYLVANIA, RESPONDENTS



Original jurisdiction in case of Ernest Robinson v. Commonwealth of Pennsylvania, Department of Justice and Bureau of Corrections of Pennsylvania and D. E. Knoll, Records Officer for Bureau of Corrections of the State Correctional Institution at Graterford, Pennsylvania.

COUNSEL

Ernest Robinson, petitioner, for himself.

Peter Foster, Deputy Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 32 Pa. Commw. Page 78]

To a petition for review by petitioner pro se, Ernest Robinson, respondents have filed a preliminary

[ 32 Pa. Commw. Page 79]

    objection in the nature of a demurrer. Such a preliminary objection admits as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959); Vance v. Kassab, 15 Pa. Commonwealth Ct. 328, 325 A.2d 924 (1974). Conclusions of law and unjustified inferences are not so admitted. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). We thus consider whether petitioner has stated on the face of his petition a cause of action which, if proved, would entitle him to the relief sought. Yania v. Bigan, supra. If upon such examination of the petition there remains doubt as to the propriety of dismissing the petition, the demurrer shall not be granted. Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971).

On June 25, 1973, petitioner was sentenced to a term of five to eighteen years. With credit for time served, the effective date thereof was April 17, 1972. The minimum date was April 17, 1977, and the maximum date was April 17, 1990.

On September 30, 1975, while participating in a work-release program, petitioner failed to return to custody. A warrant charging him with escape under 18 Pa. C.S. ยง 5121 was sworn on October 1, 1975, and on January 20, 1977, petitioner was apprehended. A preliminary hearing on the escape charge was conducted on January 25, 1977, and petitioner was bound over for trial. On that same date, the record officer at the State Correctional Institution at Graterford took upon himself to administratively adjust the effective, minimum and maximum dates of petitioner's sentence so as to deny him credit for the time during which he was at large as an escapee -- one year, three months and nineteen days.

[ 32 Pa. Commw. Page 80]

Petitioner advances three legal contentions: (1) that he has been subjected to unconstitutional double jeopardy by having his sentence adjusted simultaneously with being charged with escape; (2) that the record officer lacked authority to take such action because the adjustment of a sentence is a judicial function; and (3) that respondents' failure to provide ...


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